Legal Hitory Review vol.31 (1981)
Summaries of Articles
 


The Idea of Subu (Holding Together) in Japanese Legal History

– with a View to its Significance in a Systematical Understanding of Japanese Legal History –

Ryōsuke Ishii

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The Enrolment of Athenian Phratries

by Sadao ITO

In this paper the author discusses two problems of Athenian phratries – first, when people entered phratries, and secondly, whether women could also be enrolled.

Two opposing views are expressed by scholars as to the first problem. Some regard the childhood as the time to enter phratries, but others maintain that youth became phrateres when they attained to the puberty, that is, sixteen years of age. The author appreciates the description of Pollux (VIII 107) that phrateres used to sacrifice the kureion for boys attaining to the puberty, and supports the second view. His arguments are as follows. (1) Though the name of kureion cannot be found in Attic orations, this ceremony is often referred to in the inscription of Dekeleieis (IG II2 1237) and the descriptions of other lexicographers (Hesychius s. v. ƒÈƒÍƒÒƒÏƒÃώƒÑƒÇς; Suda s. v. ƒÈƒÍƒÒƒÏƒÃώƒÑƒÅς). (2) According to the descriptions of Hesychius and Suda, boys had their hair cut at the kureion. This custom suggests that the kureion was a kind of initiation celebrated for young men. (3) The kureion in the above-mentioned inscription appears to be the main sacrifice and directly linked to the enrolment, while the meion, another sacrifice that is found in the inscription, is probably a preliminary one, celebrated at the first Apaturia after the birth. The kureion must have been celebrated at the puberty. (4) Some descriptions in Attic orations, for example, Andoc. I 124-126, represent the meion.

As regards the second problem, the author thinks that women could not enter phratries. He does not put trust in the description of Pollux (loc. cit.) that phrateres sacrificed the gamelia for girls attaining to the puberty. (1) In Attic orations gemelia implies the banquet which a bridegroom served to some members of his phratry for the introduction of his bride. (2) The description of Isaeus III (73, 75-76, 79), which suggests just the introduction of a daughter to phrateres, does not represent the enrolment of girls. (3) Euxitheos, the speaker of Demosth. LVII, maintains his citizenship partly by the witnesses of the members of the phratry, which his mother's relatives belonged to (ibid. 40, 69), partly by the witnesses of the members of his father's phratry (ibid. 67). The relationship between women and phratries apparently was indirect. The author's conclusion is that girls were not enrolled, though introduced to phrateres at the first Apaturia after their birth.

The enrolment of phratries seems to be the preliminaries of the civic registration at demes, because of two facts that women are excluded from both kinds of groups, and that phratries enrolled boys just before the civic registration at the age of eighteen. It is also obvious that the Athenian state was much concerned with the enrolment of phratries, because a law regulated the qualification for the entry (Isae. VII 16). Indeed the entry in a phratry was regarded as the acquisition of citizenship (Demosth. XXXIX 31, 34). Therefore the author suspects that ineligible people became Athenian citizens through the illegal entry in phratries. In Attic orations he finds some evidences of such an illegality (Isae. VI 18-24; Isae. XII 2; Demosth. LIX 13, 38, 118). By the middle of the fourth century B. C. Athenian phratries had ceased to function well enough as a kind of basic groups of the Athenian state. This fact suggests that the Athenian society was gradually undergoing a transformation after the Peloponnesian War.


On the Principles of Government and the Forms of the Territorial Conformation of a Hundred or More States of Ancient Japan in duding Uruma States of Okinawa,   Blessed of “Holy Mountains and Islands”

– Illustrative Case of the State “Sufo (Žü–h) no Kuni (‘)” –

by KōdōSAKURAI

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Hozumi Nobushige and the Old Civil Code of 1890

by Shunichiro KOYANAGI

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Why Do the Constitutional Studies of the “Parliamentary Sovereignty” Require Historical Research?

by Yukikazu BANDŌ

The “Sovereignty of Parliament” generally means first that Parliament may do anything it wishes, and secondly that there is no person or body in the united Kingdom with power to set its acts aside, namely that no Act of Parliament could be declared to be invalid by courts of law. This doctrine was systematized by A. V. Dicey in the late nineteenth century, and has been upheld by orthodox English lawyers. But, on the other hand, some new attempts have been made to question the doctrine. According to them, if Parliament were truly sovereign, it would necessarily be above the law, which would contradict Dicey's. own theory on the rule of law. The question which has not been settled is the relation between Acts of Parliament and the common law.

Sir Ivor Jennings insists that the “parliamentary sovereignty” in Dicey's sense is a doctrine of law. Therefore, he holds the view that Parliament's legal power depends on a legal rule which is established by the courts. The point is presented by Jennings in the form of a paradox: since Parliament can change the law as it likes, it can alter the law about itself as well as the law about anything else.

On the contrary the Dicey school has considered that no Parliament could legislate to prevent the repeal or amendment of its own enactments, or, to put it tersely, no Parliament could bind its successors. Under this view a fallacy in Jennings' attempt was to secure the settlement within the limits of the unmixed legal principle.

H. W. R. Wade, who supports Dicey's view, refers to J. W. Salmond to solve the said paradox. What Salmond cans the “ultimate legal principle” is a rule which is unique in being unchangeable by Parliament, whose operation is ultimate and whose source is not legal, but only historical. He says that the doctrine of the Parliamentary sovereignty is in one sense a rule of common law, but in another sense, it is the political fact upon which the whole system of legislation hangs.

E. C. S. Wade, who also supports Dicey's view, cites from J. Bryce: “The historical facts which have vested power in any given sovereign lie outside the questions with which the law is concerned, and belong to historical or to political philosophy or to ethics.”

O. H. Phillips also says, “The legislative supremacy of the British Parliament, as well as being a legal concept, is also the result of political history and is ultimately based on fact, that is, general recognition by the people and the courts. It is therefore at the same time a legal and political principle. “He refers to H. L. A. Hart, who calls it “the ultimate rule of recognition,” which may be regarded both as an external statement of fact and as an internal criterion of validity.

Salmond's “ultimate principle” bears a close resemblance to Kelsen's Grundnorm. But R. T. E. Latham has succeeded in proving that the Grundnorm, whether or not it coincides with the written constitution, is prior and superior to the legislature and is daily so treated by courts, so that he denies the doctrine of the parliamentary sovereignty. On the other hand, according to some new views, Dicey failed in proving that the law made the legislature a sovereign law-making body, nor has any of his followers succeeded in doing so.

Now, the recent and rapid process of the constitutional change in England has provoked once more this old controversy. Hereupon, it must be acknowledged that the arguments for and against the traditional view have raised some questions about the inherent meaning in what it called “the historical fact.”

The doctrine of the parliamentary sovereignty must be logically prior to its recognition by the courts. But from a historical angle we do not accept the doctrine as a norm until the courts recognize it.

I set some subjects for inquiry which can be summarized thus: –

(1) Have the courts actually ever recognized the doctrine?

(2) Is there any positive proof as to the court's recognition? Has it ever been historically examined?

(3) Is the doctrine not based upon misunderstood authorities, false analogies, hasty generalizations, and contradictory assertions, as Chijioke Dike said?

(4) Can not the sovereign legislature which has the constituent power   modify the constitution itself?

(5) Did the “historical fact” (i. e. the Revolution of 1688) change the common law in quality? Was it a revolution in defence of law or against it?

(6) What is the Merkmal (criterion) of the legal revolution? Is the “legal revolution” from which legal consequences flow changed by revolution or by legislation? (As for this question, J. D.B. Mitchell's opinion is noticeable. He says as follows: “Law must eventually come into step with reality.” “A constitution which attempted to protect too much would prove unworkable.”)

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